The Chief Justice, Dylan and the Disappearing Double Negative

The last chief justice liked light opera. The new one cites Bob Dylan.

Four pages into his dissent on Monday in an achingly boring dispute between pay phone companies and long distance carriers, John G. Roberts Jr., the chief justice of the United States, put a song lyric where the citation to precedent usually goes.

“The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing,” Chief Justice Roberts wrote. “ ‘When you got nothing, you got nothing to lose.’ Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).”

Alex B. Long, a law professor at the University of Tennessee and perhaps the nation’s leading authority on the citation of popular music in judicial opinions, said this was almost certainly the first use of a rock lyric to buttress a legal proposition in a Supreme Court decision. “It’s a landmark opinion,” Professor Long said.

In the lower courts, according to a study Professor Long published in the Washington & Lee Law Review last year, Mr. Dylan is by far the most cited songwriter. He has been quoted in 26 opinions. Paul Simon is next, with 8 (12 if you count those attributed to Simon & Garfunkel). Bruce Springsteen has 5.

But Mr. Dylan has only once before been cited as an authority on Article III standing, which concerns who can bring a lawsuit in federal court. His key contribution to legal discourse has been in another area.

“The correct rule on the necessity of expert testimony has been summarized by Bob Dylan: ‘You don’t need a weatherman to know which way the wind blows,’ ” a California appeals court wrote in 1981, citing “Subterranean Homesick Blues.” Eighteen other decisions have cited that lyric.

Chief Justice Roberts’s predecessor, William H. Rehnquist, cited his beloved Gilbert & Sullivan in a 1980 dissent from a decision that the press had a constitutional right of access to court proceedings. He was still an associate justice, and he thought the court had made up the right out of whole cloth. In rebuttal, Justice Rehnquist relied on the Lord Chancellor in “Iolanthe” to rebuke the majority. “The Law is the true embodiment of everything that’s excellent,” the Lord Chancellor says. “It has no kind of fault or flaw, and I, my Lords, embody the Law.”

That made Justice Rehnquist’s point pretty well. The Roberts citation is more problematic.

On the one hand, he showed excellent taste. “Like a Rolling Stone,” as Greil Marcus has written, is “the greatest record ever made, perhaps, or the greatest record that ever would be made.”

On the other hand, Chief Justice Roberts gets the citation wrong, proving that he is neither an originalist nor a strict constructionist. What Mr. Dylan actually sings, of course, is, “When you ain’t got nothing, you got nothing to lose.”

It’s true that many Web sites, including Mr. Dylan’s official one, reproduce the lyric as Chief Justice Roberts does. But a more careful Dylanist might have consulted his iPod. “It was almost certainly the clerks who provided the citation,” Professor Long said. “I suppose their use of the Internet to check the lyrics violates one of the first rules they learned when they were all on law review: when quoting, always check the quote with the original source, not someone else’s characterization of what the source said.”

The larger objection is that the citation is not true to the original point Mr. Dylan was making, which was about the freedom that having nothing conveys and not about who may sue a phone company. (See, e.g., “Me and Bobby McGee.”)

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